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Super-injunction Twitter user in contempt of court if tweets were true

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A Twitter user who claims to have posted information that is banned from publication by the UK courts on the social network site could be found in contempt of court, a media law expert has said.

The anonymous user posted six 'tweets' claiming to reveal the identity of celebrities who have obtained super-injunctions banning the media from publishing information about their private lives.

Super-injunctions are court orders banning the publication of certain information, and of the reporting of the existence of the ban. In celebrity privacy cases, details are usually issued to the media to inform them of what they cannot report.

The Twitter user could be charged with contempt of court even if they have not seen the terms of the court order, Kim Walker, media law expert at Pinsent Masons, the law firm behind OUT-LAW, said.

"The super-injunction is issued at large and will apply to you if you know about it. You do not need to have seen the terms of the order to be bound by it. You are in contempt of court if you publish the names. The difficulty will be in enforcing it," Walker said.

"To bring contempt proceedings against the Twitter user a court would need to identify the person. To do this they would usually start by writing to Twitter asking the company to let them have the personal information (assuming Twitter holds it) about who is behind the account," he said. "Twitter would certainly respond that it would require a court order forcing it to hand over the information because of privacy laws that prevent personal data being shared, and also because it is unlikely they would want to be seen to be taking the security and privacy of its user information lightly."

"In the UK an individual would apply to court for a court order called a Norwich Pharmacal Order to require the release of the information. But because Twitter is based in the US a UK court would have no jurisdiction to enforce the order against Twitter," Walker said.

"The UK court would have to write to its US equivalent asking it to impose a request for information. It would then be up to that court whether to issue Twitter with an order to disclose the information," Walker said.

This process is slow and could prove difficult for those behind the super-injunctions to use, which could lead some to question whether super-injunctions can ever fully work, Walker said.

"It is increasingly questionable whether super-injunctions are effective because of the jurisdictional and practical difficulties of enforcing them across the web and where the controversy they bring in fact seems to draw attention to and whet the public's appetite for the very information they are designed to suppress," Walker said.

Some newspapers reported one of the anonymous Twitter user's claims on Monday. Human rights campaigner and charity fundraiser Jemima Khan denied the allegations via Twitter.

"Rumour that I have a super-injunction preventing publication of "intimate" photos of me and Jeremy Clarkson. NOT TRUE!" Khan said on her Twitter page.

"If it is not true and there is no super-injunction in place then the newspapers are clearly not going to be up for a contempt of court charge," Kim Walker said.

"It is nevertheless possible for Khan to sue the anonymous Twitter user for libel if she thinks she has been defamed. A libel action could be brought in the UK courts because the messages have been published in the UK. She would still have the same problems that the authorities might have in discovering the identity of the Twitter account user," Walker said.

People who retweet defamatory "tweets" could also have a libel case brought against them, Walker said.

"You are still liable if you publish a libel even if you are not the first person to do so. It is easy to re-post a 'tweet' on your own account on Twitter, but if you retweeted a message that breaks a court ban or repeats a defamatory comment you are still responsible," Walker said.

A report about super-injunctions is expected to be published later this month by a committee chaired by the Master of the Rolls. The report comes at a time of increasing political interest in whether super-injunctions are being used as legal tools by the rich to chill free speech in the interests of their privacy and whether Parliament or the courts should be responsible for trying to find a proper balance between free speech and the right to privacy.

Prime Minister David Cameron has admitted to being uneasy at the increasing use of court orders obtained by celebrities to ban media reports about their private life. Last month BBC journalist Andrew Marr admitted he had used a court order in the past to ban the publication of details of an affair. Marr said he was "embarrassed" at having restricted what journalists could report about him.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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